Judgment:
S.C. Parija, J.
1. These two applications have been filed under Section 482 Cr.P.C., assailing the order of S.D.J.M. (S), Cuttack, dated 28.2.2007, passed in ICC No. 671 of 2005, taking cognizance against the petitioners for commission of offences under Section 323 read with Section 107/108 I.P.C. and Section 29 of the Police Act.
2. The factual background of the case is that the husband of the complainant (Debakalyan Mohanty), who was working as Senior Mining Engineer, Gevra. Colliery under South Eastern Coal Fields Ltd. (a subsidiary of Coal India Ltd), in the State of Madhya Pradesh (now Chattishgarh), died on 30.12.1995 under suspicious circumstances. The local police after investigation, did not find anything suspicious and it appeared to be a case of suicide. Accordingly, they filed final report treating it to be a case of suicide and the final report was accepted by the Executive Magistrate, Kathaghora, Korba.
3. The complainant not being satisfied with the investigation conducted by the local police, filed writ application (OJC No. 11925 of 1996), alleging murder of her husband by coal mafias at the instance of the high officials of South Eastern Coal Fields Ltd. (for short 'SECL') and prayed for investigation of the matter by Central Bureau of Investigation (for short 'CBI'). This Court by order dated 19.01.2001 directed the Director, C.B.I., New Delhi, to get the matter investigated by deputing its officers.
4. Pursuant to the direction of this Court, the CBI, Jabalpur Branch, registered case No. RC 1 (S)/2002, dated 01.01.2002 under Section 120-B/320 I.P.C. against unknown official of SECL and others and started investigation.
5. Alleging delay in investigation by the C.B.I. and not recording her statement under Section 164 Cr.P.C., the complainant moved this Court by filing writ application (O.J.C. No. 47 of 2002) and prayed for police protection for herself and her son. This Court by order dated 04.01.2002, directed the Superintendent of Police, C.B.I., to take immediate steps to record the statement of the complainant with further direction 10 the Superintendent of Police, Cuttack, to render necessary police protection to the family of the complainant as and when required.
6. During the course of investigation, the C.B.I. recorded the statement of witnesses including the doctor who had conducted the post-mortem on the dead body, who opined that the death occurred due to asphyxia as a result of ante-mortem hanging and was suicidal in nature. Basing on the direct and circumstantial evidence collected, statement of witnesses recorded, including the statement of the complainant recorded under Section 164 Cr.P.C., expert opinion obtained during investigation and after analyzing the same, the C.B.I. came to the conclusion that none of the offences alleged in the F.I.R. has been substantiated. Accordingly the C.B.I. filed final report, under Section 173 Cr.P.C. for closure of the case, before the Special C.J.M., Raipur.
7. The complainant filed yet another writ application (O.J.C. No. 5536 of 2002) alleging therein that repeated attempts on her life were being made by sponsored hard core criminals, armed with deadly weapons, demanding certain documents in connection with C.B.I. case relating to alleged murder of her husband, in which final report had been submitted. This Court by order dated 28.1.2005, disposed of the writ petition with a direction that some armed constables from the Orissa State Armed Police (for short 'O.S.A.P.') may be provided to protect the complainant, since she apprehend that the police personnel belonging to the district police at Cuttack may not be able to protect her life in case of real danger from the anti-social elements. In the said order, it was further observed that the D.I.G. (Central Range) to decide as to how many of the armed constables from the O.S.A.P. should be provided for the protection of the complainant and accordingly he will requisition the service of the required number of armed constables, for protecting the life and liberty of the complainant at Cuttack, which shall be provided without any charges. In the said order it was further observed that it was for the D.I.G. (Central Range) to review the threat perception to the life and liberty of the complainant from time to time and decide the scale and type of protection and whether the police protection should be continued or not, taking into consideration all relevant factors.
8. The complainant again approached this Court by filing writ application (O.J.C. No. 5724 OF 2002) praying to register appropriate criminal cases for the offence alleged to have been committed by the principal accused persons and their sponsored criminals during the C.B.I. investigation. During the pendency of the said writ petition as C.B.I. had completed the investigation and submitted final report under Section 173 Cr.P.C. before the Chief Judicial Magistrate, Raipur, after approval from the competent authority of the C.B.I., the complainant prayed that the final report submitted by the C.B.I. should not be accepted and they should be directed to further investigate the case.
9. This Court by order dated 31.1.2005, disposed of the writ petition with the observation that the Chief Judicial Magistrate, Raipur, need not summon the complainant or require her presence for consideration of the final report filed by the C.B.I. under Section 173 Cr.P.C. and the said report be considered in accordance with law, on its own merit.
10. In the complainant petition, it is alleged that the complainant and her advocate made several correspondences with the D.I.G. (Central Range), Cuttack, alleging threat and personal assault to her by unknown criminals during the continuance of her security. They also alleged that the Superintendent of Police, Cuttack and D.I.G. (Central Range), Cuttack, are deliberately not taking adequate measures for her safety and that they are in conspiracy with the criminals. It was further alleged that the complainant was injured due to alleged beating to her in the dead hours of the night and that she was examined by one Sri B.C. Das, Retired Professor of S.C.B. Medical College and Hospital, Cuttack, who examined 88 Nos. of Photograph of injuries on different parts of her body and seeing such photographs the doctor opined that all the injuries are bruises of different degree of severity and caused by hard blunt weapon of elongated size and the injuries cannot be self-inflicted because of their location and severity.
11. On the basis of such allegations in the complaint petition, the statement of the complainant and her witness, learned Magistrate came to find that during the deployment of the armed police, providing security to the complainant, some unknown criminals frequently entered into the house of the complainant and caused several injuries on the person of the complainant using some elongated hard weapon. Learned Magistrate also came to find that though the complainant had alleged that the unknown persons attempted to kill her, the same was merely an apprehension of the complainant and further the allegations that the police officers conspiring with unidentified criminals to kill the complainant or cause bodily injury to her is clearly not borne out from the materials on record.
12. In spite of such clear findings, learned Magistrate proceeded to hold that the police officers, particularly the then Superintendent of Police, Cuttack (petitioner in CRLMC No. 629 of 2007) and the then D.I.G. (Central Range), Cuttack, (petitioner in CRLMC No. 850 of 2007) are responsible for their negligence in duty and omission to take appropriate action in the matter of security of the complainant. Learned Magistrate further held that though there is no direct evidence as to the involvement of the aforesaid police officers, yet the injury was caused to her solely due to the inaction of the aforesaid two highly placed police officers and omission on their part to provide adequate security to the complainant. Learned Magistrate proceeded to hold that the conduct of the two police officers who were entrusted with the duty to ensure the security of the complainant, failed in discharging their duties deliberately and due to their lapses, the complainant sustained bodily injury at the hand of unidentified criminals. Accordingly, learned Magistrate found both the petitioners liable for offences under Section 323 read with Sections 107/108 I.P.C. and Section 29 of the Police Act.
13. Coming to the question of sanction, as required under Section 197(1) Cr.P.C., learned Magistrate proceeded to hold that as the two police officers (petitioners), who were entrusted by the High Court to secure the safety and security of the complainant were deliberately negligent in providing adequate security to her and for their lapses some unidentified criminals caused several injuries to her and damaged her property, such action does not come within their official duty and therefore no sanction is necessary to prosecute the accused persons. Accordingly, cognizance was taken against the petitioner under Section 323, read with Section 107/108 I.P.C. and Section 29 of the Police Act.
14. During the course of hearing, it has been brought to our notice that the complainant had subsequently filed W.P.(Crl.) No. 54 of 2008 against many senior police officers of the State, including the present petitioners and others, alleging that there were threat to her life as well as to the life of her mother by the present petitioners and others. In the said writ petition, the complainant filed a Misc. Case No. 76 of 2008 alleging that injuries were inflicted on her and poisonous injection was administered to her by some persons in connivance with some high level police officials. An affidavit was filed by the complainant making some unbelievable allegations that she found Debasis Panigrahi (petitioner in CRLMC No. 629 of 2007) and Sri Satyajit Mohanty (petitioner in CRLMC No. 850 of 2007) on her roof or courtyard or verandah at night. In view of such allegations, this Court by order dated 16.05.2008 directed the complainant to appear before the Medical Board to be constituted by the Principal, S.C.B. Medical College and Hospital, Cuttack, for necessary medical examination, who shall report about her physical and mental condition with reference to the allegations made by her. The complainant however did not appear before the Medical Board and instead made further allegations that sponsored hard-core criminals are harassing and committing offences against her and E-mail message giving threat to murder have been received by her. She also alleged bias against the police officers.
15. This Court vide order dated 25.06.2008, while disposing of W.P.(Crl.) 54 of 2008, observed that the complainant is enjoying police protection round the clock at the cost of State exchequer, which is continue for a long time and even then, she is alleging that threat is being given to her at the instance of the police officers of high rank and that efforts are being made to eliminate her. Considering the allegation of bias made by the complainant against the State Police, this Court directed the C.B.I. to register the case and cause investigation into the allegations made by the complainant. This Court further observed that in case allegations made by the complainant are found to be false and baseless, it will be open for the C.B.I. to initiate appropriate proceedings for prosecution of the complainant in accordance with law.
16. Being aggrieved by the observation of this Court made in its order dated 25.06.2008, passed in W.P.(Crl.) No. 54 of 2008, regarding initiation of proceeding against the complainant, she filed Review Petition No. 196 of 2008, which was dismissed by this Court vide order dated 24.03.2009.
17. Subsequently,, the complainant has filed yet another writ petition (W.P.(Crl.) No. 566 of 2008) against the present petitioners and other senior police officers making similar allegations. As the complainant did not co-operate in the investigation being conducted by the C.B.I., this Court vide order dated 07.01.2009 has directed C.B.I to take any article from the residence of the complainant, which is required for the purpose of investigation into its possession and to conclude the investigation as expeditiously as possible.
18. Learned Counsel for the petitioners with reference to the factual background of the case, as narrated above, submitted that the complainant is in the habit of making false, frivolous and vexatious allegations against senior police officers of the State, including the two present petitioners, which are absurd and unbelievable. In this regard, it is submitted that as the complainant is enjoying security cover round the clock, provided by a large number of police personnel of O.S.A.P. since last many years, pursuant to the directions of this Court, the allegations that hard-core criminals are entering her house in the night and beating her up and administering poisonous injection to her are totally false and imaginary. It is stated that such false, improbable and unbelievable allegations against senior police officers of the State are being made only to ensure continuance of security to her at the cost of the State exchequer, which is not provided even to very high dignitaries/functionaries of the State.
19. Learned Counsel for the petitioners with reference to the impugned order under challenge, submitted that as the allegations made in the complaint are so absurd, unbelievable and inherently improbable, on the basis of which no prudent persons can ever reach a conclusion that there is sufficient ground for proceeding against the present petitioners, learned Magistrate erred in ignoring the same and taking cognizance against the petitioners. It was further submitted that even taking the allegations made in the complaint at their face value and accepted in their entirety do not prima facie constitute any offences or make out any case against the petitioners, and therefore the continuance of criminal proceeding against them is an abuse of the process of court.
It was further submitted by learned Counsel for the petitioners that in absence or prior sanction as required under Section 197(1) Cr.P.C., the impugned order of cognizance cannot be sustained. In this regard it is submitted that as the learned Magistrate had come to the finding that the petitioners had failed in discharging their official duties in providing adequate security to the complainant, for such alleged dereliction of official duty, prior sanction of the appropriate Government was required under Section 197(1) Cr.P.C., before taking cognizance.
20. Learned Counsel for the complainant-opposite party No. 2 on the other hand submitted that as the allegations made in the complaint are serious in nature, which can only be established by way of trial, no interference is warranted at this initial stage. In this regard, it was submitted that as the learned Magistrate has taken into consideration the allegations made in the complainant and the statement of the complainant and the witnesses, in coming to a prima facie conclusion that the present petitioners are liable for the offences alleged against them, the same cannot be interfered with at an initial stage, in exercise of inherent powers under Section 482 Cr.P.C.
Coming to the question regarding the requirement of prior sanction under Section 197(1) Cr.P.C. for taking cognizance against the present petitioners, it was submitted that the learned Magistrate having come to a clear finding that the present petitioners have deliberately failed to discharge their duties and due to such lapses, the complainant sustained bodily injury at the hands of unidentified criminals, such action of the petitioners cannot be said to be in discharge of their official duties and therefore the protection provided under Section 197(1) Cr.P.C. is not available to them.
21. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the tests to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. Section 482 does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of the any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle 'quando lex aliauid alicui concedit, concedre videtur et id sine guo res ipsae esse non potest' (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the Section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which along courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of the process of court, to allow any action which would result in injustice and prevent promotion of justice and in exercise of such powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the report or the complaint, the court may examine the question of fact. When a report or complaint is sought to be quashed, it is permissible to look into the materials to assess what the report has alleged and whether any offence is made out even if the allegations are accepted in toto.
22. In the case of State of Karnatak v. L. Muniswamy and Ors. : AIR 1977 SC 1489, the Supreme Court has observed that the wholesome power under Section 482, Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The Supreme Court observed in that case that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. The aforesaid ratio of the case has been followed in a large number of subsequent cases of Apex Court and other Courts.
23. In the case of Madhavrao Jiwajirao Scindia and Ors. v. Sambhajirao : AIR 1988 SC 709, the Supreme Court has observed as follows:
7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and wherein the opinion of the court chances of an ultimate conviction is bleak and, therefore, on useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.
24. The scope of exercise of power under Article 226 of the Constitution and Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of the process of any Court or otherwise to secure the ends of justice were set out in some detail by the Supreme Court in State of Haryana and Ors. v. Ch. Bhajan Lal and Ors. : AIR 1992 SC 604. The Hon'ble Court made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercise:
(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceeding and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
25. In the case of Zandu Pharmaceutical Works Ltd. and Ors. v. Mohd. Sharaful Haque and Anr. : 2005 (I) OLR (SC) 51 : AIR 2005 SC 9, the Supreme Court has observed as follows:
It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complainant is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
26. In a earlier decision of this Court, in the case of Tribikram Misra v. State of Orissa and Anr. 67 (1989) CLT 729, a Division Bench of this Court, while dealing with the sustainability of the order of cognizance in absence of prima-facie satisfaction, has held as follows:
At the stage of cognizance, however, the court is not required to enter into a detailed discussion of the merits or demerits of the case so as to find out if the allegations and the charges are true or not. It is nevertheless desirable for the court to see that innocent persons are not roped in so as to suffer the rigour of a trial with the sword of Damocles hanging on his head, merely because some of the witnesses made bald statements implicating him in criminal offence. It is also settled law that the Magistrate taking cognizance of offence should not act as an automation and believe and swallow what a few witnesses state about a person having been involved in a criminal offence, but has to apply his judicial mind and test the materials on record with eagle eyes so as to discern the complicity of otherwise of the person concerned. For this purpose, he is bound to give free play to his sense of criticism. Unless this course is adopted at the initial stage of a criminal case, it is very likely that innocent persons would be involved in criminal cases, may be falsely and without any basis. It is also to be borne in mind that unless this salutary caution is exercised, crafty litigants will be encouraged to implicate innocent persons or their rivals in criminal cases by setting up a few band followers to speak against such persons.
27. In the case of Punjab National Bank v. Surendra Prasad Sinha : AIR 1992 SC 1815, the Supreme Court has observed that judicial process should not be an instrument of oppression or needless harassment. There lies the responsibility and duty on the Magistrate to find out whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the accused persons impleaded then only process would be issued. At that stage the Court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would-not be the means to wreak personal vengeance.
28. On a perusal of the complaint, it is seen that the complainant has alleged that inspite of the security provided to her round-the-clock by armed police personnel of O.S.A.P., some anti-social elements and hard-core criminals are entering her house in the dead hours of the night and assaulting her regularly. There is no medical evidence to show any injury caused to her and the treatment if any, which has been given. Instead, the complainant appears to have produced some photographs of her alleged injuries caused on different parts of her body, on examination of which by one Dr. B.C. Das, purportedly a retired Professor of S.C.B. Medical College and Hospital, Cuttack, has given some opinion. The allegations appears to be wild and baseless, when seen in the light of the fact that the complainant has been enjoying round-the-clock security cover by armed police personnel of O.S.A.P. since last many years, pursuant to directions of this Court.
29. Coming to the involvement of the present petitioners in the alleged offences, it is seen from the impugned order of cognizance that the learned Magistrate has found as follows:
xxx xxx Besides, the allegations that the police officers conspired with the unidentified criminals to kill the complainant or cause bodily injury to her is not clearly borne out from the materials on record.
30. Learned Magistrate has thereafter proceeded to hold as under;
But since it is convincingly proved to the prima-facie satisfaction of the Court that the complaint being under tight security of police as per the direction of Hon'ble Court was injured and her personal safety was affected to grant extent, the police officers particularly the then S.P., Cuttack, Sri Debasish Panigrahi and the then D.I.G., Central Range Sri Satyajit Mohanty are responsible for their negligence in duty and omission to take proper action in the matter of security of complainant. Though there is no direct evidence as to involvement of the aforesaid officers, yet the injury was caused to her solely due to in action of the aforesaid two highly placed police officers and omission in their part to provide adequate security to her. xxx xxx.
31. On the basis of the above findings, learned Magistrate has held as under;
xxx xxx The conduct of the said two officers who were entrusted to ensure the security of complainant failed in discharging their duty deliberately and due to their lapses, the complainant sustained bodily injury at the hand of unidentified criminals. The said two officers are therefore liable for the offences Under Section 323 read with Section 107 and 108 of I.P.C. and Under Section 29 of the Police Act.
32. It is not known as to how the learned Magistrate came to a prima facie finding that he complainant had sustained injuries, which was due to the inaction and lapses on the part of the present petitioners, when there is absolutely no medical evidence in proof of any such injury. Moreover, there is no material to even suggest that any unidentified criminals had ever entered the house of the complainant during continuance of round-the-clock police protection provided by personnels of O.S.A.P. It is rather strange that when the allegations in the complaint is with regard to alleged wilful lapses and dereliction of duty by the security personnels posted at the house of the complainant, who were parties in the complaint, they have not been held liable for such alleged offence and no cognizance has been taken and process has been issued against them. All these goes to show that the learned Magistrate has acted in a most casual and mechanical manner and has failed to apply his judicial mind to the very nature and extent of the allegations made in the complaint and exercise caution and circumspection is examining the genuineness of the same, before taking cognizance and issuing process against the present petitioners.
33. From the impugned order we find that the learned Magistrate has found the petitioners liable for the offences under Section 323 read with Sections 107 and 108 I.P.C. and Section 29 of the Police Act. The findings arrived at by the learned Magistrate, basing on which the order of cognizance has been passed, do not satisfy the ingredients of those provisions, inasmuch; as, there is no material to even prima facie establish that the petitioners had voluntarily caused any grievous hurt to the complainant. Similarly, there are no materials to even suggest that the petitioners had intentionally instigated, aided or abetted the commission of any crime. There are also no materials to show that the two petitioners were guilty of wilful breaches or neglect of any rule of regulation or any lawful order or violation of their duty.]
In view of such wild and baseless allegation made in the complaint which are absurd, inherently improbable and entirely unbelievable and even otherwise, as such allegations do not prima facie constitute any offence or make out a case against the petitioners, we feel the initiation of criminal proceeding by taking cognizance and directing issue of process has become an instrument of operation in the hands of the complainant as a Vendetta to harass the present petitioners needlessly. Allowing continuance of such a proceeding would be an abuse of the process of court.
34. Coming to the question regarding requirement of sanction for prosecution under Section 197(1) Cr.P.C, it is now well settled that the protection given under Section 197 of the Code is to protect responsible public servants against the institutions of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty.
35. Section 197(1) of the Code reads as under:
197. (1) When any person who is or was a judge or Magistrate or a public servant not removable from his office save by or. with the sanction of the Government is accused of any offence . alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction:
(a) in the case of person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government:
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.xx xx xx xx
36. The section falls in the chapter dealing with conditions requisite for initiation of proceedings. That is if the conditions mentioned are not made out or are absent then no prosecution can be set in motion. For instance no prosecution can be initiated in a Court of sessions under Section 193, as it cannot take cognizance, as a court of original jurisdiction, of any offence unless the case has been committed to it by a Magistrate of the Code expressly provides for it. And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than police officer, or upon his knowledge that such offence has been committed. So far public servants are concerned the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specified the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, no court shall take cognizance of such offence except with the previous sanction. Use of the words, 'no' and 'shall' make it abundantly clear that the bar on the exercise of power by the court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is the complaint, cannot be taken notice of. According to Black's Law Dictionary the word 'cognizance' means 'jurisdiction or 'the exercise of jurisdiction or 'power to try and determine causes'. In common parlance it means 'taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty.
37. Shreekantiah Ramayya Munipalli and Anr. v. State of Bombay : AIR 1955 SC 287 was probably the first leading decision of Apex Court on the point. Keeping in view the underlying object behind Section 197 and referring to Dr. Hori Ram Singh as also H.H.B. Gill, Vivian Bose, J. stated:
Now it is obvious that if Section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of course it is not part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it.
38. Again, in Amrik Singh v. State of Pepsu : AIR 1955 SC 309, Supreme Court held that it is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Code, nor every act done by him while he is actually engaged in the performance of his official duties, so that, if questioned, it could be claimed to have been done by virtue of the office. It is only when the act complained of is directly connected with his official duties that sanction is necessary.
39. Speaking for the Court, Venkatarama Ayyar, J. referring to the relevant decisions on the point, formulated the principle:
The result of the authorities may thus be summed up: it is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution.
40. A reference may be made to a decision of the Constitution Bench in Matajog Dobey v. H.C. Bhari : AIR 1956 SC 44. Holding Section 197 of the code constitutional and not discriminatory and violative of Article 14 of the Constitution, Hon'ble Court stated that the primary object of Section 197 was to protect public servants from harassment in the discharge of their official duties. Delivering the judgment for the Bench, Chandrasekhara Aiyar, J. said:
The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What we must find out is whether the act and the official duty are so interrelated that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation.
41. In P. Pukhraj v. State of Rajasthan and Anr. : AIR 1973 SC 2591, after considering several cases on the point, Supreme court observed that though the principle is well settled, the real difficulty lies in applying it to the factual situation. It was accordingly held:
While the law is well settled the difficulty really arises in applying the law to the fact to any particular case. The intention behind the section is to prevent public servants from being unnecessarily harassed. The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have dishonest intention. Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The test appears to be not that the offence is capable of being committed only by a public servant and not by anyone else, but that it is committed by a public servant in an act done or purporting to be done in the execution of duty.
42. In B. Saha and Ors. v. M.S. Kochar : AIR 1979 SC 1841, the Supreme Court held that the sine qua non for the applicability of Section 197(1) Cr.P.C. is that the offence charged, be it one of commission or omission must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him.
43. In P.K. Pradhan v. State of Sikkim : AIR 2001 SC 2547, the Supreme Court has, inter alia, held as follows:
The legislative mandate engrafted in Sub-section (1) of Section 197 debarring a court from taking cognizance of concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purported to be in the discharge of his official duty and such public servant is not removable from office save by or with the sanction of the Government, touches the jurisdiction of the court itself. It is prohibition imposed by the Statute from taking cognizance. Different tests have been laid down in decided cases to ascertain the scope and meaning of the relevant words occurring in Section 197 of the Code:' any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty'. The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence: the only point for determination is whether it was committed In the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What a court has to find out is whether the act and the official duty are so interrelated that one can postulate reasonably that it was done by the accused in the performance of official duty, though, possibly in the excess of the needs and requirements of the situation.
44. In State of Orissa v. Ganesh Chandra Jew : 2004 (I) OLR (SC) 621 : 2004 AIR SCW 1926, it was held that the expression 'any offence alleged to have been committed by public servant while acting or purporting to act in the discharge of his official duty' implies that the act or omission must have been done by the public servant in the course of his service and that it should fall within the cope and range of his official duty. It was then observed that the test is whether omission or neglect to do that act would be brought on a public servant, the charge of dereliction of his official duty. The protection is available only when the alleged act done by the public servant is reasonable, connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act.
45. In S.K. Zutshi and Anr. v. Bimal Debnath and Anr. : AIR 2004 SC 4174, while considering to what extent an act or omission performed by a public servant in discharge of his official duty can be deemed to be official, the Supreme Court observed:
Use of the expression, 'official duty' implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omission which are done by a public servant in discharge of official duty.
It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is under the colour of office. Official duty therefore implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The Section has, thus, to be construed strictly, while determining its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the Section has to be construed narrowly and in a restricted manner. But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the Section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated.
46. In K. Kalimuthu v. State : AIR 2005 SC 2257, the Supreme Court observed that the protection given under Section 197 of the Code is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. But the said protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act.
The Hon'ble Court accordingly proceeded to hold that if on facts, therefore, it is prima facie found that act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed.
47. In Rakesh Kumar Mishra v. State of Bihar and Ors. : AIR 2006 SC 820, Supreme Court while reiterating the object behind enacting Section 197 of the Code and also the prerequisites for application thereof, held as follows:
The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if it chooses to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe an sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty : if the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case.
48. The aforesaid views regarding the extent of protection available to a public servant while acting in discharge of his official duty, under Section 197(1) Cr.P.C. has been reiterated and affirmed by the Apex Court in Sankaran Moitra v. Sadhna Das and Anr. : AIR 2006 SC 1599 and Anjani Kumar v. State of Bihar and Anr. : AIR 2008 SC 1992.
49. In the present case, learned Magistrate while dealing with the question regarding requirement of prior sanction for prosecuting the present petitioners, as required under Section 197(1) Cr.P.C, has come to the following findings:
In the instant case, it is well proved that the aforesaid two police officers who were entrusted by the Hon'ble High Court to secure the safety and security of the complainant were thoroughly negligent in providing adequate security to her and for their lapses some unidentified criminals caused several injuries to her and also caused damage to one of her room. Taking into consideration the facts and circumstances of the case and the discussion made above, I feel no sanction is necessary to prosecute the aforesaid accused persons. Cognizance is taken accordingly Under Section 323 read with Section 107/108 IPC and Under Section 29 of Police Act.
50. In the case at hand, as the act complained of are alleged to have been committed by the present petitioners as public servants in discharge of their official duty or in dereliction of the same, the protection envisaged under Section 197(1) Cr.P.C. is attracted. We are therefore of the considered view that the petitioners, who are very senior police officers of the State and are not removable from their office save by or with the sanction of the Government, cannot be prosecuted without previous sanction of the appropriate Government.
51. Considering the factual background as detailed above on the touchstone of legal principles set out above, the inevitable conclusion is that the allegations in the complaint are absurd and inherently improbable and even if they are taken at their face value and accepted in their entirety, no offence is made out against the petitioners. Hence the continuance of criminal proceeding against the present petitioners would be an abuse of the process of court. Even otherwise the impugned order of cognizance is also unsustainable in absence of prior sanction of the appropriate Government as required under Section 197(1) Cr.P.C.
52. In view of our findings recorded above, the impugned order of cognizance is quashed and the complaint registered as ICC No. 671 of 2005 in the Court of learned S.D.J.M.(S), Cuttack, is dismissed.
CRLMC Nos. 629 and 850 of 2007 are accordingly allowed.
B.P. Das, J.
53. I agree.